STATE OF NEW JERSEY v. NIGEL H. JOHN BAPTISTE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5528-05T15528-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

NIGEL H. JOHN BAPTISTE,

Defendant-Appellant.

__________________________________

 

Submitted: February 28, 2007 - Decided March 21, 2007

Before Judges Cuff and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 96-03-00385.

Clifford E. Lazzaro & Associates, attorneys for appellant (Mr. Lazzaro, on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Dana Citron, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant pled guilty to third degree possession of a controlled dangerous substance (CDS) (cocaine), contrary to N.J.S.A. 2C:35-10a(1) (Count One); and first degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (Count Two), following denial of his motion to suppress. Prior to sentencing, he fled. Ten years later, following denial of his motion to withdraw his plea, Judge Moynihan sentenced defendant. He merged Count One with Count Two and imposed a fifteen-year term of imprisonment with a six-year period of parole ineligibility. The appropriate fines, penalties and assessments were imposed.

We commence our consideration of the arguments raised by defendant with a review of the evidence adduced at the June 1996 motion to suppress.

On December 27, 1995, at approximately 6:21 p.m., Officer James Wozniak of the Cranford Township Police Department entered the Garden State Parkway southbound at exit 137 in an unmarked police car. While traveling in the acceleration lane of the Parkway entrance, the officer observed in his rear view mirror a vehicle driving erratically and at a very high rate of speed. He observed the car changing lanes at a high rate of speed without using turn signals and weaving in and out of traffic. He saw other vehicles jam on their brakes or swerve to avoid defendant's car. The officer quickly concluded that the vehicle was a hazard to the other drivers on the road.

The vehicle passed Wozniak. As he drew close to the vehicle, Wozniak observed that the driver's side tail light was broken and the rear and side windows were heavily tinted.

Wozniak decided to stop the vehicle. Prior to stopping the vehicle driven by defendant, Wozniak's speedometer registered eighty to eighty-five miles per hour. Wozniak eventually pulled up behind the vehicle, activated his overhead lights and siren, and stopped the vehicle.

When the officer approached defendant's side window, he observed a black male alone in the vehicle. At the officer's request, defendant handed the officer his insurance card, a Delaware driver's license and vehicle registration. The officer noticed that defendant's hands shook when he provided the insurance card. When the officer returned the card to accept defendant's driver's license, he noticed that defendant's hands were actually trembling, that he was very fidgety and obviously nervous. Wozniak felt that defendant's conduct was very suspicious and suspected that an illegal act was in progress or had occurred because defendant was acting too nervous under the circumstances. When he asked defendant if he was nervous or scared, defendant replied, "Where did you come from? I didn't even see you."

Wozniak returned to his vehicle, performed a credentials check, and learned that defendant's Delaware license was valid, but his New Jersey driver's license was suspended. While Wozniak was in his patrol care, he observed a shadow of a person moving back and forth from the driver's side to the passenger side, and noted that the vehicle shook from side to side.

When a back-up officer arrived, defendant exited his vehicle with his pants unbuttoned and his zipper down. His pants had been in place when Wozniak approached defendant earlier to obtain his credentials. The back-up officer immediately ordered defendant to return to his car, and defendant complied. However, Wozniak observed that the driver's side window was open, defendant's arm was hanging outside the window, and defendant was making quick up-and-down movements with his arm extended from the window. Wozniak believed that defendant might have been trying to discard something.

Thereafter, the two officers approached defendant's vehicle; Wozniak approached the driver's side and the back-up officer approached the passenger side. Wozniak asked defendant if there was a problem, and shone his flashlight inside the vehicle. At that time, he observed about forty to fifty medical folds scattered about defendant's feet, the console area, the passenger seat and the passenger floorboard. He also observed an object about the size of a book wrapped in aluminum foil and duct tape on the passenger side floor on top of a brown paper bag. Based upon his experience and training in narcotics, he knew that large quantities of drugs are packaged in this manner and suspected that the package contained a kilogram of drugs.

Wozniak asked defendant to exit the vehicle and Wozniak searched the passenger compartment. Wozniak retrieved the package and the medical folds. A white powdery substance leaking from a slit in the package confirmed his suspicions that the package contained narcotics. Wozniak arrested defendant and informed him of his Miranda rights.

Defendant testified at the motion to suppress that he was unaware of his speed, but conceded that the back windshield and two rear seat windows were heavily tinted. Defendant claimed that he saw Wozniak's unmarked police car enter the Parkway at exit 137 and identified the car as an unmarked police vehicle because it was a "Chevy." Defendant testified that he slowed down once he saw the police car, that he and the officer made eye contact, and then the officer pulled behind him, followed him for about a minute, and then stopped him. Defendant denied being nervous or exhibiting any signs of nervousness. He also denied that his pants were unbuttoned or unzippered at that time.

Defendant admitted that the officer found a package of drugs in his car. He further admitted that the drugs belonged to him and that he knew the drugs were in the car, but denied that the package was in plain view. He claimed that he had placed the package under the front passenger seat and that it was well-hidden. Defendant testified that he was delivering the drugs to a friend in Delaware.

Defendant denied having medical folds in the vehicle, as described by Wozniak. He claimed that the items strewn about the car were actually appointment cards from his brother-in-law's carpet cleaning business.

Judge Anzaldi found the officer more credible than defendant. Accordingly, the motion judge found that Wozniak had probable cause to stop defendant's vehicle due to the broken rear tail light, excessive speed and erratic driving. The judge further found that the officer had probable cause to search the vehicle based upon his observation of medical folds and the suspected package of contraband in plain view inside the vehicle.

On appeal, defendant presents the following arguments:

POINT I

Under The Totality Of The Circumstances, The Defendant Should Be Permitted To Withdraw His Plea Of Guilty.

A. Former Defense Counsel Failed To Raise The Issue Of "Racial Profiling" During Any Stage Of The Litigation Constituting Ineffective Assistance of Counsel.

B. Former Defense Counsel's Line of Questioning During Direct Examination Constituted Ineffective Assistance of Counsel.

POINT II

The Trial Court Erred By Denying the Motion to Suppress Evidence As There Was No Probable Cause to Search the Defendant's Vehicle.

Initially, we must observe that our review of the findings of fact made by Judge Anzaldi is extremely limited. Once we conclude that the findings, including the judge's determination of the credibility of the witnesses, are supported by substantial evidence in the record, we are not free to disturb those findings. State v. Locurto, 157 N.J. 463, 470-71 (1999). Our review of the record provides no basis to disturb the findings of fact, and it is on these facts, as found by Judge Anzaldi, that we review the determination of the motion to suppress.

Although searches and seizures must be conducted pursuant to a warrant issued upon a showing of probable cause, State v. Pineiro, 181 N.J. 13, 19 (2004); U.S. Const. amend. IV; N.J. Const. art. I, 7, there are recognized exceptions to this rule. Pineiro, supra, 181 N.J. at 19; State v. Maryland, 167 N.J. 471, 482 (2001). The State bears the burden by a preponderance of the evidence to demonstrate the constitutional validity of a warrantless search and seizure. Pineiro, supra, 181 N.J. at 20.

A police officer may stop "'a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense.'" Locurto, supra, 157 N.J. at 470 (quoting State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997)). Once a vehicle has been lawfully stopped, mere observation of the interior of the vehicle is not a search. State v. Johnson, 274 N.J. Super. 137, 153 (App. Div.) (citing State v. Foley, 218 N.J. Super. 210, 215 (App. Div. 1987)), certif. denied, 138 N.J. 265 (1994). Moreover, there is no legitimate expectation of privacy to items that may be observed by even a casual passerby. Ibid. Therefore, an officer's observation of objects that are in plain view within an automobile cannot be considered an unlawful search. Id. at 154.

Defendant's vehicle was lawfully stopped. He was operating the vehicle in excess of the speed limit and in a reckless manner. A tail light was broken and the windows were heavily tinted. These obvious violations of traffic regulations provided a reasonable basis for the officer to stop defendant. Defendant's behavior and the officer's observation of the interior of the vehicle made it apparent that the wrapped and taped package and the medical folds were evidence of criminal activity. The officer was lawfully in the viewing area and the contraband was discovered inadvertently. Under these circumstances, the items were subject to seizure. State v. Bruzzese, 94 N.J. 210, 236-38 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). In short, defendant's actions provided a reasonable and articulable basis to stop defendant and the officer's observation of contraband and narcotics paraphernalia in plain view provided a basis to seize that material. The motion to suppress the seized evidence was properly denied.

Defendant argues, however, that the timing and the place of the search raised questions of racial profiling and that counsel should not have allowed defendant to admit that he knew that the vehicle contained narcotics and that he was transporting the drugs from one place to another at the time he was stopped. He contends that the failure of his attorney to raise the issue of racial profiling and counsel's trial strategy must be considered ineffective assistance of counsel and a basis to allow defendant to withdraw his guilty plea. We disagree.

Following denial of his motion to suppress, defendant pled guilty to both charges on June 17, 1996, before Judge Anzaldi. He completed and signed two plea forms that day. Defendant testified that he decided to plead guilty before the motion to suppress hearing began. He claimed that pleading guilty was something that he and his attorney had discussed as a possibility.

At the plea hearing, defendant testified that he understood the charges against him, and that he was able to speak to his attorney to ask any questions. He testified that he read the plea form, understood the questions, and answered the questions truthfully. He stated that he signed the form after consulting with his attorney, who was available to answer any questions he had about the form. Defendant further testified that he was satisfied with the advice of his attorney. He stated that no one coerced him into pleading guilty, including his attorney. He also stated that his attorney had explained to him the maximum sentence he could receive, and how his pre-sentence report would be used during sentencing.

Then, in his own words, defendant described the events that occurred on the day of his arrest. Defendant admitted that he was pulled over for a broken tail light, that the officer found over five ounces of cocaine in the vehicle, that he knew the package of drugs was in the car, and that he was in the course of delivering it to another person. At the conclusion of the hearing, the judge accepted defendant's guilty plea and scheduled his sentencing for September 6, 1996.

Rule 3:21-1 provides that "[a] motion to withdraw a plea of guilty . . . shall be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice." "The withdrawal of a guilty plea is not an 'absolute right'; it is a matter within the broad discretion of the trial court." State v. Simon, 161 N.J. 416, 444 (1999) (quoting United States v. Spencer, 836 F.2d 236, 238 (6th Cir. 1987)). See also State v. Herman, 47 N.J. 73, 76 (1966); State v. Luckey, 366 N.J. Super. 79, 87 (App. Div. 2004). Although our courts generally exercise their discretion liberally to permit the withdrawal of a guilty plea, "'[l]iberality in exercising discretion does not mean an abdication of all discretion.'" State v. Smullen, 118 N.J. 408, 416 (1990) (quoting State v. Huntley, 129 N.J. Super. 13, 17 (App. Div.), certif. denied, 66 N.J. 312 (1974)).

Generally, representations made by a defendant at the plea hearing regarding the voluntariness of the decision to plead and any findings by the trial court when accepting the plea "constitute a 'formidable barrier' which defendant must overcome before he will be allowed to withdraw his plea." Simon, supra, 161 N.J. at 444 (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136, 147 (1977)). This is because "'[s]olemn declarations in open court carry a strong presumption of verity.'" Ibid. Accordingly, "'[a] guilty plea voluntarily entered should not generally be vacated in the absence of some plausible showing of a valid defense against the charges.'" Ibid. (quoting State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992)). In addition, the trial court must weigh the policy considerations favoring the finality of judicial procedures against the principle that "no man be deprived of his liberty except upon conviction after a fair trial or after the entry of a plea of guilty under circumstances showing that it was made truthfully, voluntarily and understandingly." Herman, supra, 47 N.J. at 76-77 (citing State v. Deutsch, 34 N.J. 190, 197-98 (1961)). See also Luckey, supra, 366 N.J. Super. at 87.

On appeal, "the trial court's denial of defendant's request to withdraw his guilty plea will be reversed . . . only if there was an abuse of discretion which renders the lower court's decision clearly erroneous." Simon, supra, 161 N.J. at 444 (citing Smullen, supra, 118 N.J. at 416). See also Luckey, supra, 366 N.J. Super. at 87.

Defendant's testimony at the time he entered his guilty plea is, indeed, a formidable barrier to allowing him to withdraw the plea years later. The transcript of the plea hearing provides clear evidence that the plea was voluntary and informed.

Defendant claims, however, that the attorney he had retained provided ineffective assistance of counsel; therefore, the information provided to him compromised his decision to plead guilty. We measure this claim in accordance with the well-established standard for evaluating claims of ineffective assistance of counsel.

Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). Whether "retained or appointed," such counsel must "ensure that the trial is fair"; therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution extends the same right to counsel. N.J. Const. art. I, 10.

In order to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland, supra, 466 U.S. at 668, 104 S. Ct. at 2052, 80 L. Ed. 2d at 674. First, defendant must show that defense counsel's performance was indeed deficient. Second, defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The precepts of Strickland and its standard for evaluating the performance of counsel have been adopted by New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987). There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61, a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95.

Measured by this standard, we hold that Judge Moynihan properly denied this claim and the associated request to withdraw the guilty plea. First, accepting the officer's testimony as credible, the stop was effectuated before the officer had any idea that the driver of the vehicle was a black man. Second, the officer provided compelling testimony regarding the manner in which defendant operated the vehicle that required police intervention. Moreover, the officer that stopped defendant was a local police officer. The Interim Report of the Attorney General on which defendant relies does not assist his claim. This report pertains only to State Troopers.

We also reject the contention that counsel's decision to have defendant admit that he was a narcotics courier was constitutionally ineffective representation. The issues at the motion to suppress concerned whether there was a reasonable and articulable suspicion that defendant was engaged in criminal activity to allow the stop and whether the contraband was in plain view. There was no issue about the nature or amount of the contraband found and seized. Defendant admitted only the obvious.

The judgment of conviction is, therefore, affirmed.

Affirmed.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

(continued)

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A-5528-05T1

March 21, 2007